“Now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore the word sedition has been omitted. As a matter of fact the essence of democracy is Criticism of Government”. — K. M. Munshi, while moving the amendment for removing the term ‘Sedition’ from the Constitution, Constituent Assembly Debates On December 1, 1948, Part I
“In a landmark order, the Apex Court put all the sedition cases in abeyance and virtually stalled the usage of Section 124A of the Indian Penal Code by the governments until the Union Government completes the re-examination process. Earlier, the Centre decided to re-examine and reconsider the provisions of one of the most contested laws in the criminal justice system. In the official statement before the Court, the Government expressed concerns about civil liberties and human rights while maintaining and protecting this great nation’s sovereignty and integrity. These dramatic developments have given us a unique opportunity to discuss and deliberate on colonial law with a fresh perspective which we must grab with the right questions.
The law having colonial roots is the most obvious argument against the sedition law. But with that logic, many provisions of the Penal Code will need a review. As asked in a discussion paper by Law Commission in 2018, if contempt of Court invites penal action, then why should the same contempt not apply to the Government. Both the concepts have a colonial origin.
In 1833, Thomas Babington Macaulay drafted the sedition clause to curb ‘disloyalty’ by the Bharatiya subjects towards the British Empress. The origin takes us to the Statute of Westminster of 1275, which justifies monarchy through the Divine Right theory. Thus, the undemocratic origin should be the first reason for discarding ‘sedition’ in a democracy.
Framers of the Bharatiya Constitution rightly removed the usage in the Constitution with due diligence and vehement opposition from the likes of K M Munshi. Though the Section was there in the penal code, the Constitutional spirit defied it. Unfortunately, even before the first General Elections, Jawaharlal Nehru introduced the First Amendment to the Constitution and reinforced the colonial thinking on Independent Bharat. Again, Jan Sangh founder Dr Syama Prasad Mookerjee opposed the amendment extending restrictions on free speech. Nehru’s intolerance towards criticism distorted the original spirit of the Constitution; hence the re-examination is necessary.
The present Sedition Law, by definition – to excite disaffection towards the Government established by law – creates the scope for abuse. Hence, from the Nehruvian period until date, all Governments, irrespective of the ruling party’s ideology, could not resist the temptation to use it against dissent. In 1962, while interpreting the same Section in the Kedar Nath Singh case, the Supreme Court tried to restore the balance. Still, the misuse of the law continued, as we have seen recently, in Maharashtra in the ‘Hanuman Chalisa’ fame Navneet Rana case. A thin line between the criticism of the Government and inciting violence or disloyalty against a nation or the State should be distinctly marked.
The balance between freedom of speech and its regulation for ensuring public order and national security is the fundamental question haunting all forms of democracies. The Maoists or other terrorists and their sympathisers should not see this re-examination as a licence for continuing their nefarious designs. As a true votary of free speech, our civilisation has always believed in celebrating the diversity of opinions. So criticism of anyone or any idea should not offend us. The law designed against our freedom struggle by the colonialists and rejected by our Constitution makers must go. At the same time, we need to ensure the replacement with appropriate provisions or amendments to the existing laws so that the anti-Bharat forces would not misuse the democratic space to weaken our democracy.